The Judicial System and Democratization in Post-Conflict Cambodia, Kheang Un

Judicial corruption is a widespread problem in Asian courts (e.g., Li 2012; Cheesman 2015). Democratization can bring checks and balances of power to a political system, yet it may not be sufficient to prevent corruption in courts.

[W]hen the People's Republic of Kampuchea (PRK) came to power in 1979, there was no legal system in place. The PRK, following the Vietnamese and Soviet models, re-established a judicial system to give Cambodia at least the pretense of legality. Because of staff shortages, the PRK set up short-term training courses for would-be judges and prosecutors. However, because the regime considered the legal system an integral part of the ruling party's apparatus, the training emphasized Marxist-Leninist doctrines over legal sub­jects. Prosecutors and judges were usually former school teachers and literate Cambodians with “good biography”, meaning that they had no political connection to the previous regime.

The PRK was slowly able to create a formal court system. However, as in other communist states, the PRK judicial system was subservient to the party and the government. The official party line was that the court could not be entirely trusted, and this distrust opened a space for frequent interference in the judicial process by government officials at both the central and provincial level. The party or powerful individuals, but not law, determined the course of the proceedings and the verdicts of trials.

Court officials also suggest that impunity is a product of patronage, corrup­tion and the abuse of power. Despite the existence of internationally endorsed “free and fair” elections, the state is not being ruled by democratic political institutions. The mechanism through which the state is governed has changed little since the late 1980s. The Cambodian state is structured by interlocking pyramids of patron-client networks that serve as a means of exclusion and inclusion in a multi-network competition. In other words, like many develop­ing countries, the Cambodian state is built not on rational institutions but on patronage, a political pattern in which a leader's power comes from his ability to capture and maintain loyalty of key sections of political elite by fulfilling their material aspirations through the distribution of perquisites. [...]

Court officials including judges and prosecutors publicly stated that low salaries are a factor contributing to judicial corruption. Up until 2002, the average monthly salary for judges, prosecutors and other court officials was around US$24. A monthly salary of US$24 was never anywhere near sufficient to support individual court officials, let alone their families. According to a judge, the living conditions of court officials under the current regime are poorer than those during the PRK/SOC. During that period, the government at least offered state employees, including court officials, supplementary rations including rice, gasoline and soap. Therefore, poverty causes corrup­tion. As one judge acknowledges, “The court is corrupt and that I am not denying. But there are some good people. There are some bad people but these people are the product of poverty. Poverty generates illegal acts.”

Corruption is not attributed as much to poverty as it is to rent seeking behaviour, a common practice of present day Cambodia. Through decades of war and social upheaval, Cambodians experienced constant uncertainties in their lives.

The absence of institutional constraint coupled with a wider sociopolitical environment dominated by patronage and corruption blurs even judges' perceptions of what constitutes legality and illegality, and morality verses immorality. Judges whom the author interviewed did not reject the allegation that the courts were corrupt. However, they defended their actions forcefully arguing that some acts of receiving money from litigants do not constitute corruption. Rather, they argued that these monetary transactions can rightfully be called “fees”. Accepting such a fee is not wrong - if not legally, at least morally. Defending their act of accepting money from litigants, a judge explained: “We [judges] help those who are right. [When] they win their cases, they repay their gratitude to us [pel ke chneah ke song sarkun yoeng]. This is Khmer culture.”

Another judge admitted that she accepted money from people. However, she emphasized that “What should be asked is what service did I provide those people? The money that they offered was for the service that I offered them and this service is not at all illegal. If accepting money for doing things is illegal, then it can be called corruption. If accepting money for doing things is legal, then it cannot be called corruption.” Tith Sothy, chief judge at Kampong Cham provincial court, was reported to have admitted: “I cannot tell a lie.

Despite the judges' claim of moral conduct, this author's interviews and conversations with clerks, lawyers and litigants reveal that very often judges manipulated those who came into contact with the judiciary to ensure the maximum bribe. According to a lawyer, on some occasions judges employed delaying tactics in their rulings in order to extract more bribe money from litigants. The office of the former governor of Phnom Penh alleged that seven PPMC judges accepted US$310,000 in bribery in exchange for releasing 20 criminals.

Corruption within the judicial system is intertwined with the overarching system of patronage; they are two aspects of a single way of thinking of power. As in other branches of the government, merit counts for little within the judiciary. On the contrary, appointments and promotions are based on pat­ronage and bribery. “Within the court system,” a prosecutor said, “if someone wants to be promoted he/she has to make a request and the request involves paying a bribe. I could not understand. I knew some people who requested to be promoted and they did just that [paid a bribe].” Transferring to PPMC or to the court in a prosperous province also requires paying a bribe. A judge who was able to get transferred from a remote province to a more populous and relatively prosperous one said she could not afford the price to transfer to the Phnom Penh Municipal Court.